Callihan v. Montrief
| Decision Date | 06 April 1934 |
| Docket Number | No. 12960.,12960. |
| Citation | 71 S.W.2d 564 |
| Parties | CALLIHAN v. MONTRIEF et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Young County; Allan D. Montgomery, Judge.
Suit by George Callihan against J. B. Foster and B. E. Montrief, in which defendant Foster set up a cross-action and counterclaim and also sought a recovery over against defendant Montrief and the American Indemnity Company, and in which the indemnity company sought recovery over against defendant Montrief. From the judgment, plaintiff, defendant Foster and defendant Montrief appeal.
Affirmed in part, left undisturbed in part, and reversed and remanded in part for another trial.
Bouldin & Bouldin, of Mineral Wells, and Homer T. Bouldin, of Albany, for appellants.
Thompson & Barwise, Ogden Shannon, and Cantey, Hanger & McMahon, all of Fort Worth, and Marshall & King, of Graham, for appellees.
In a former suit, George Callihan and J. H. Wheeler, partners, recovered a judgment against Frank Maley for the sum of $1,807.73, with costs of suit and foreclosure of an attachment lien on certain drilling tools owned by Maley. The tools were then sold under that foreclosure by the sheriff, J. E. Foster, who levied the writ, for the sum of $325, the plaintiff George Callihan being the purchaser, but declining to pay the sheriff the amount of his bid. When the writ of attachment was levied, B. E. Montrief was using the tools in the drilling of an oil well and they were taken from his possession by Sheriff Foster. After the sheriff had taken the tools into his possession, he granted Montrief's request for permission to use the tools for the purpose of finishing the well, and while they were being so used they were badly damaged by fire.
The present suit was instituted by George Callihan, who, by assignment, had acquired all interest of his partner, J. H. Wheeler, in the partnership assets, against the sheriff, J. B. Foster, and B. E. Montrief, to recover $1,807.73, the amount of the former judgment, with interest at 6 per cent. thereon, upon allegations that but for damage done thereto by the fire the drilling tools would have brought at the sheriff's sale more than enough to satisfy the judgment recovered against Maley in the former suit, who is now insolvent.
In answer to plaintiff's suit, the defendant F. E. Foster alleged that he had permitted B. E. Montrief to use the tools for drilling purposes by permission and consent of George Callihan and J. H. Wheeler, plaintiffs in the former suit, acting for themselves and through their attorney, and that therefore plaintiff in the present suit is estopped to claim the damages sued for.
Defendant Foster, by way of cross-action and counterclaim, sought to recover of the plaintiff the sum of $443, which he claimed as court costs accruing to him in the suit, including the cost of executing the writ of attachment and the expense of caring for the tools while in his possession, and the hire of a watchman for the tools after levy of the writ under plaintiff's agreement to reimburse him therefor.
Defendant Foster also sought a recovery over against defendant Montrief and the American Indemnity Company for any judgment that might be recovered against him by the plaintiff. The prayer for that relief was predicated upon an indemnity bond in the sum of $1,000 executed to him by Montrief, as principal, and the indemnity company, as surety, conditioned for the return to the sheriff of the drilling tools in as good condition as the same were prior to the use of them by Montrief, and the further condition that the makers of the bond would indemnify and hold harmless Sheriff Foster from all costs and damages which he may suffer by virtue of his permission to Montrief to use the tools.
By supplemental petition the plaintiff denied the allegations in Foster's cross-action, and further pleaded that it was the duty of Foster, as sheriff, after taking the tools into his possession, to keep them in a safe place, and that, by the exercise of reasonable diligence, he could have stored the same in a warehouse or other safe place for a sum not exceeding $50 as charges for transportation and storage.
B. E. Montrief, in reply to plaintiff's petition, pleaded a general denial, and, further, that the tools were delivered to him with the consent of plaintiff and his attorneys; that subsequent to such delivery, and prior to the injury to the tools by fire, plaintiff and his authorized representatives and attorneys knew the tools were being used by him (Montrief), and after acquiring such notice took no steps to prevent such use and never objected thereto, and by reason thereof plaintiff is now estopped to assert his claim of liability against him (Montrief).
The American Indemnity Company pleaded that it was induced to execute the bond by representation of both Foster and Montrief that George Callihan and his partner, J. H. Wheeler, had agreed and consented that the sheriff could turn over the tools to Montrief, and by reason thereof Foster is now estopped to assert liability against the indemnity company; and, further, that, if Foster was not liable to the plaintiff, he could not recover against the defendant
There was a further plea over against Montrief by the indemnity company on his indemnity bond for any judgment that might be rendered against the indemnity company.
The court denied plaintiff a recovery against the defendants Foster and Montrief and also denied defendant Foster a recovery over against Montrief on the indemnity company's plea over. The judgment further awarded a recovery to the indemnity company on its plea over against B. E. Montrief in the sum of $100. The defendant Foster was denied a recovery on his counterclaim against the plaintiff for costs of the former suit because "not within the jurisdiction of the court."
All parties adversely affected by the judgment gave notice of appeal, and appeals have been prosecuted to this court by the plaintiff, by Sheriff Foster, and by defendant Montrief, all of whom have filed briefs here, as has also the American Indemnity Company.
The evidence shows that the sheriff, in turning over the tools to Montrief, acted upon a letter addressed to him by Messrs. Boulding and Zivley, attorneys of record for Callihan and Wheeler in the former suit. The letter read as follows:
The principal issue involved in this appeal as between the plaintiff, Callihan, and the defendant Foster is whether or not that letter was sufficient to work an estoppel against the plaintiff to claim damages from Foster for the damage done to the tools after they were turned over to Montrief.
Article 290, Rev. Civ. Statutes, reads as follows: "When personal property is attached, the same shall remain in the hands of the officer attaching until final judgment, unless a claim be made thereto and bond be given to try the right to the same, or unless the same be replevied or be sold as provided by law."
Article 291 reads: "Any person other than the defendant may claim the personal property so levied on, or any part thereof, upon making the affidavit and giving bond required by the provisions of the title relating to the trial of the right of property."
Article 292 provides for a replevy by the defendant in the suit.
Montrief did not claim ownership of the tools levied on, nor was he defendant in the attachment suit, and therefore he was not in a position to get possession of them in any statutory method. That fact was well known to him and to the plaintiff and to Sheriff Foster at the time he applied to plaintiff and to the sheriff for permission to use them to finish the well. While specific instructions for authority to write the letter were not given to the attorneys for plaintiff Callihan, yet it is our conclusion that their act in so doing was not beyond the scope of their authority as such attorneys, and that plaintiff is bound thereby, since the attorneys acted in the utmost good faith and with no thought whatever of jeopardizing plaintiff's interest. 5 Tex. Jur. pp. 452, 453, 454; 6 Corpus Juris, pp. 641, 642, 643; Willis & Bro. v. Chowning, 90 Tex. 617, 40 S. W. 395, 59 Am. St. Rep. 842. And this conclusion is strengthened by the following testimony of plaintiff Callihan himself:
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